Search form

Featured Topics

To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This case is before the Authority on a negotiability appeal filed under
section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute
(the Statute), and concerns the negotiability of six provisions of a negotiated
agreement that were disapproved by the Agency head under section 7114(c) of the
Statute.(1)

Provision 1 requires that when the Agency suspects sick leave abuse,
the Agency must notify employees orally and in writing that all future sick
leave requests must be supported by a doctor's certificate. Provision 1 is
nonnegotiable because it directly interferes with the Agency's right to
discipline employees under section 7106(a)(2)(A) of the Statute.

Provision 2, Section 5, which provides that the employer should refrain
from calling employees' physicians to verify the employees' illnesses, directly
interferes with the Agency's right to discipline employees under section
7106(a)(2)(A) but is an appropriate arrangement within the meaning of section
7106(b)(3). Provision 2, Section 11, which provides that the employer will not
call employees to verify the employees' illnesses, directly interferes with the
Agency's right to discipline employees under section 7106(a)(2)(A) of the
Statute and does not constitute an appropriate arrangement within the meaning
of section 7106(b)(3).

Provision 3, which provides that it is the policy of the employer,
where possible, to promote from "within," is nonnegotiable because it directly
interferes with management's right to select an individual to fill a vacant
position from any appropriate source under section 7106(a)(2)(C) of the
Statute.

Provision 5 provides that the employer is prohibited from bringing more
than one charge against an employee for a single instance of misconduct.
Provision 5 directly interferes with management's right to discipline employees
under section 7106(a)(2)(A) and does not constitute an appropriate arrangement
within the meaning of section 7106(b)(3) of the Statute.

Doctor Certificates will be required in individual cases if the
Employer has reason to believe the employee is abusing sick leave privileges.
In such cases the employee shall be warned orally that, because of a
questionable sick leave record, a doctor's certificate may be required for each
subsequent absence due to sick leave. If improvement is not noted, he/she will
be advised in writing that all future requests for sick leave must be supported
by a doctor's certificate. The requirement for a doctor's certificate will be
reviewed semiannually and will be rescinded in writing at such time as
sufficient improvement in the employee's sick leave record
warrants.

A. Positions of the Parties

1. The Agency

The Agency argues that "[b]y prohibiting the [A]gency from placing an
employee on restriction for leave abuse," Provision 1 directly interferes with
management's right to discipline employees under section 7106(a)(2)(A) of the
Statute. Agency's Statement of Position at 1-2, citing Service and Hospital
Employees International Union, Local 150 and Veterans Administration Medical
Center, Milwaukee, Wisconsin, 35 FLRA 521 (1990) (Provision 2) (VAMC,
Milwaukee).

2. The Union

The Union argues that Provision 1 "sets forth a procedure for placing
an employee on notice for requiring future requests for sick leave to be
supported by a doctor's certificate." Union's Response at 1. The Union disputes
the Agency's reliance on VAMC, Milwaukee and maintains that the
provision does not directly interfere with management's right to
discipline.

B. Analysis and Conclusions

We conclude that Provision 1 directly interferes with the Agency's
right to discipline employees under section 7106(a)(2)(A) of the Statute.

In situations where the Agency has reason to believe that an employee
is abusing sick leave, Provision 1 requires the Agency to first orally warn the
employee that a doctor's certificate may be required for each subsequent
absence due to sick leave. If no improvement is noted, the provision requires
the Agency to then advise the employee in writing that all future requests for
sick leave must be supported by a doctor's certificate. The effect of Provision
1 is to require the Agency to provide an oral and a written warning to an
employee suspected of sick leave abuse before the Agency may put the employee
on sick leave restriction and require the employee to provide a supporting
medical certificate for sick leave requests.

Because the use of leave restriction is, in practical terms, a
precondition of an agency's decision to discipline employees for suspected
misuse or abuse of sick leave, provisions or proposals that preclude an agency
from imposing sick leave restriction directly interfere with management's right
to discipline employees under section 7106(a)(2)(A) of the Statute. American
Federation of Government Employees, Local 1156 and U.S. Department of the Navy,
Navy Ships Parts Control Center, Mechanicsburg, Pennsylvania, 42 FLRA No.
79 (1991), slip op. at 5 (Navy Ships Parts Control Center) (provision
requiring management to take several steps before placing an employee suspected
of abusing sick leave on leave restriction directly interferes with
management's right to discipline). SeealsoNational
Federation of Federal Employees, Local 405 and U.S. Department of the Army,
Army Information Systems Command, St. Louis, Missouri, 42 FLRA No. 78
(1991), slip op. at 21-22 (Army Information Systems Command) (proposal
which would prohibit management from using approved leave to place an employee
in a restricted leave use category directly interferes with management's right
to discipline).

For the initial incidents giving rise to a suspicion of sick leave
abuse, Provision 1 prevents the Agency from taking any action other than an
oral and a written warning and substitutes these warnings for whatever form of
sick leave restriction the Agency may want to impose. Because the provision
requires the Agency to give an oral and a written warning instead of imposing
sick leave restriction, we find that, as in Navy Ships Parts Control
Center, the provision would effectively preclude management from responding
to an employee's improper use of sick leave on certain occasions through
discipline. Accordingly, we find that the provision directly interferes with
management's right to discipline under section 7106(a)(2)(A) of the
Statute.

We note that our decision in Army Information Systems Command
referred to Office of Personnel Management (OPM) guidance for determining the
relationship between leave restriction and discipline, whereas the employees in
this case work for a nonappropriated fund (NAF) instrumentality and, therefore,
are not subject to those OPM regulations. However, this is not a substantive
distinction because the practical effect of Provision 1 is that it precludes
the Agency from imposing leave restriction as a prelude to discipline.
Accordingly, the fact that employees in this case are NAF employees does not
change our conclusion that Provision 1 directly interferes with the Agency's
right to discipline.

The Union does not argue that Provision 1 is intended to be an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute, and the record is insufficient for the Authority to make a
determination on that matter. SeeInternational Federation of
Professional and Technical Engineers, Local 128 and U.S. Department of the
Interior, Bureau of Reclamation, 39 FLRA 1500, 1530 (1991) (Proposal 16)
(Bureau of Reclamation). Accordingly, we find that Provision 1 is
nonnegotiable.

III. Provision 2

Article 12, Sick Leave, Section 5

It is agreed that official written notice of suspected abuse of sick
leave will not be issued when the absences have been supported by acceptable
doctor's certificates. The Employer should refrain from calling the
physician/assistant regarding the reason for absence.

Article 12, Sick Leave, Section 11

After the Employer has been notified of an employee's illness, the
Employer or supervisor or designee will not call the employee's residence for
verification of illness.

(Only the underlined portions are in dispute.)

A. Positions of the Parties

1. The Agency

The Agency argues that the provision directly interferes with
management's right to discipline employees and assign work under section
7106(a)(2)(A) and (B) of the Statute because it would prevent the Agency from
obtaining "additional substantiation of an employee's incapacitation from
duty[.]" Agency's Statement of Position at 2. The Agency also argues that the
provision violates management's right to assign work because it "prevent[s]
particular management officials from performing certain functions[.]"
Id. at 3.

2. The Union

The Union asserts that the provision is intended "to protect employees
and their physicians from undue harassment when the employee is absent due to
illness" and "to protect employee privacy." Union's Petition for Review at 2.
The Union argues that Section 5 of Article 12 "does not prevent the employer
from obtaining additional substantiation of an employee's incapacitation"
because the employer could obtain additional information "thr[ough] personal or
written contact with the physician/assistant[.]" Union's Response at 2.

As to Section 11, the Union contends that it does not impose
substantive limits on management's ability to conduct disciplinary
investigations because "[t]he employer has means available such as medical
certification to insure proper use of sick leave." Id. According to the
Union, "harassing calling of sick employee's [sic] at home . . . is not a
proper means" of conducting disciplinary investigations. Id.

B. Analysis and Conclusions

We find that Sections 5 and 11 of Provision 2 directly interfere with
the Agency's right to discipline employees under section 7106(a)(2)(A) of the
Statute. We also find that Section 5 of Provision 2 is an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute, and that
Section 11 is not an appropriate arrangement.

An employee's abuse of sick leave is subject to disciplinary action and
can result in the removal of the employee. American Federation of Government
Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons,
Federal Correctional Institution, Petersburg, Virginia, 30 FLRA 837, 843
(1987) (Bureau of Prisons) (Proposal 2). Management's right to
discipline employees under section 7106(a)(2)(A) of the Statute includes the
right to conduct investigations to determine whether discipline is justified.
American Federation of Government Employees, Local 1164 and U.S. Department
of Health and Human Services, Social Security Administration, Lynn,
Massachusetts, 35 FLRA 1193, 1199 (1990). Further, provisions or proposals
that limit an agency's use of an appropriate investigative technique to uncover
conduct subject to disciplinary action directly interfere with management's
right to discipline employees. Id.

Provision 2 prohibits the Agency from calling employees while they are
on sick leave. Provision 2 also provides that the Agency "should refrain" from
calling employees' physicians. In providing that management "should refrain"
from calling employees' physicians, the provision imposes a general obligation
on the Agency not to call and thereby establishes a substantive criterion
governing the Agency's decision to call employees' physicians to determine
whether sick leave is being abused.

We find that Provision 2 would limit the Agency's use of appropriate
investigative techniques to uncover conduct which would subject an employee to
disciplinary action. Provision 2 imposes substantive limitations on the
Agency's ability to conduct disciplinary investigations and, therefore,
directly interferes with management's right to discipline employees under
section 7106(a)(2)(A) of the Statute. SeeBureau of Prisons, 30
FLRA at 843-44 (a proposal providing, in part, that the employer agreed to not
routinely telephone employees on sick leave to check up on the employees' use
of leave was found to directly interfere with management's right to discipline
employees).

We note the Union's statement that the provision is intended "to
protect employees and their physicians from undue harassment when the employee
is absent due to illness" and "to protect employee privacy." Union's Petition
for Review at 2. We view this statement as an assertion that the provision
constitutes an appropriate arrangement. In order to determine whether a
provision or proposal constitutes an appropriate arrangement, we must determine
whether the proposal is: (1) intended to be an arrangement for employees
adversely affected by the exercise of a management right; and (2) appropriate
because it does not excessively interfere with the exercise of management's
rights. National Association of Government Employees, Local R14-87 and
Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National
Guard).

In determining whether a provision or proposal is an arrangement for
employees adversely affected by the exercise of management's rights, we look to
"the effects or foreseeable effects on employees which flow from the exercise
of those rights, and how those effects are adverse." Id. at 31.

The Authority has previously held that while a proposal limiting the
agency from telephoning employees who are absent on sick leave may constitute
an arrangement, it was not appropriate because it excessively interfered with
management's right to discipline employees. SeeBureau of
Prisons, 30 FLRA at 844.

The Union has offered nothing to support a conclusion that the portion
of Provision 2 precluding the Agency from telephoning the residences of
employees on sick leave warrants a different disposition than that reached in
Bureau of Prisons. It is well established that the parties bear the
burden of creating a record upon which the Authority can make a negotiability
determination. For example, National Association of Government
Employees and U.S. Department of Veterans Affairs, Medical Center, Brockton and
West Roxbury, Massachusetts, 41 FLRA 529, 534 (1991); National
Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C.
Cir. 1982), affirmingNational Federation of Federal Employees, Local
1167 and Department of the Air Force, Headquarters, 31st Combat Support Group
(TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party
failing to meet this burden acts at its peril. For example, National
Association of Government Employees, Local R1-134 and U.S. Department of the
Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589,
596 (1990) (Naval Underwater Systems Center). Accordingly, we find that
the portion of Provision 2 precluding the Agency from telephoning the
residences of employees on sick leave does not constitute an appropriate
arrangement under section 7106(b)(3) of the Statute and conclude, therefore,
that Section 11 of Provision 2 is nonnegotiable.

In view of our conclusion that Section 11 of Provision 2 is
nonnegotiable, it is unnecessary to address the Agency's contention that
Section 11 directly interferes with management's right to assign work.

As we noted previously, the Union argues generally that Provision 2 is
intended to "protect employee privacy." Union's Petition for Review at 2. With
respect to Section 5 of Provision 2, which states that the Agency "should
refrain" from calling physicians' offices, the Union argues that Section 5 "was
intended to prevent an employee's physician from becoming angry with the
employee (patient) because of multiple harassing calls received from employer
representatives (supervisors)." Union's Response at 2. Section 5 of Provision 2
is intended to mitigate the adverse effects on employees when the employer
telephones the employees' physicians to verify employees' illnesses and thereby
intrudes upon the doctor-patient relationship. Accordingly, we find that
Section 5 of Provision 2 is an arrangement.

We turn, then, to the question of whether the provision constitutes an
appropriate arrangement or whether it excessively interferes with management's
right to assign work. In order to determine whether the disputed language
excessively interferes with the management right, we must determine whether the
burden placed on the management right is disproportionate to the benefits to
employees conferred by the proposal. SeeKansas Army National
Guard, 21 FLRA at 33.

Section 5 of the provision requires that management "should refrain"
from telephoning the offices of employees' physicians regarding employees'
illnesses or reasons for absences. As interpreted by the Union, Section 5 of
Provision 2 "does not prevent the employer from obtaining additional
substantiation of an employee's incapacitation" because the employer could
obtain additional information "thr[ough] personal or written contact with the
physician/assistant[.]" Union's Response at 2. Therefore, Section 5 does not
preclude the Agency from requesting information from a physician about an
employee's illness, but states only that the Agency "should refrain" from
obtaining such information by telephone. Because Section 5 preserves the
Agency's ability to acquire information about an employee's illness from the
employee's physician, we find that the burden placed on management by merely
requiring management to refrain from obtaining the information by telephone is
minimal compared to the benefit accorded employees. Accordingly, we find that
Section 5 of Provision 2 is an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute.

We note the Agency's argument that the provision violates management's
right to assign work because it "prevent[s] particular management officials
from performing certain functions[.]" Agency's Statement of Position at 3,
citing American Federation of Government Employees, Local 12, AFL-CIO, and
Department of Labor, 26 FLRA 273 (1987) (Department of Labor)
(Proposal 2). We reject this argument, however, because, unlike Department
of Labor, Section 5 of the provision provides only that the employer should
refrain from taking certain action and not that supervisors or other particular
management officials should refrain from taking action.

IV. Provision 3

Article 31, Section 5

It is the policy of the Employer, where possible, to promote employees
from within, based on the above criteria.

A. Positions of the Parties

1. The Agency

The Agency argues that Provision 3 directly interferes with
management's right to select an individual to fill a vacant position from any
appropriate source under section 7106(a)(2)(C) of the Statute. In this regard,
the Agency contends that the provision improperly requires "management to
promote from within if there were one qualified employee" because, in such a
situation, "it would be 'possible' to promote from within." Agency's Statement
of Position at 4. The Agency notes that including the phrase "where possible"
does not change the nonnegotiability of the provision.

Further, the Agency contends that, despite the Union's statement to the
contrary, the provision places a substantive limitation on the Agency's right
to select employees from any appropriate source. The Agency argues that
Provision 3 is distinguishable from a similar proposal found to be negotiable
in American Federation of Government Employees, Local 2298 and U.S.
Department of the Navy, Navy Resale Activity/Navy Exchange, Naval Weapons
Station, Charleston, South Carolina, 35 FLRA 1128 (1990) (Proposal 2)
(Naval Weapons Station) because Provision 3 "would prevent the [A]gency
from simultaneously processing or considering employees from other appropriate
sources." Id. at 7.

2. The Union

The Union argues that the provision is intended to apply the criteria
set forth in the parties' agreement to the promotion of employees and states
that "[e]mphasis is placed on promotion of employees, where possible." Union's
Petition for Review at 2-3. However, in its Response to the Agency's Statement
of Position, the Union states that the words "where possible, to promote
employees from within, based on the above criteria" are intended to
"emphasiz[e] the criteria for promotion [set forth in the parties' agreement]
and not the preference of employee's [sic] over other sources of recruitment."
Id.

The Union further argues that the provision does not directly interfere
with management's right to select from any appropriate source and that "[t]he
provision does not prohibit the activity from expanding the area of
consideration." Union's Response at 3.

B. Analysis and Conclusions

We find that Provision 3 directly interferes with management's right to
select from any appropriate source under section 7106(a)(2)(C) of the
Statute.

Provisions or proposals that require management to fill vacancies from
a single source directly interfere with management's right to select from any
appropriate source. SeeInternational Brotherhood of Electrical
Workers, Local 2080 and Department of the Army, U.S. Army Engineer District,
Nashville, Tennessee, 32 FLRA 347, 357 (1988) (Provisions 3 and 4) (U.S.
Army Engineer District) (provisions requiring the agency to fill vacancies
from internal candidates in classifications where a surplus of employees
existed were found to conflict with management's right in filling vacancies to
select from any appropriate source).

Provision 3 states that it is management's policy "where possible" to
promote employees from "within." In the absence of a statement by the Union to
the contrary, we will interpret Provision 3 to apply to the promotion of
employees from within the bargaining unit.

In its statement of intent with respect to Provision 3, the Union
states that "[e]mphasis is placed on promotion of employees, where possible."
Union's Petition for Review at 2-3. This statement is consistent with the plain
wording of the provision. Accordingly, we will interpret the provision based on
the Union's statement in its petition for review and not on the Union's
contradictory claim in its response that the provision is not intended to
emphasize the preference of employees over other sources of recruitment.

Provision 3 limits management in the selection of a candidate for
promotion from outside of the bargaining unit to situations where, among other
things, it is not "possible" to promote from within the unit. As did the
provisions in U.S. Army Engineer District, Provision 3 in this case
limits the sources from which management will make selections for promotion in
the circumstances described in the provision, that is, "where [it is] possible"
to select from within the unit. Because the provision limits management in the
selection of a candidate for promotion from outside the unit to situations
where it is not "possible" to promote from within, and thereby dictates, in
some situations, the source for selection, the provision directly interferes
with management's right to select from any appropriate source under section
7106(a)(2)(C) of the Statute. CompareNaval Weapons Station, 35
FLRA at 1131-34 (Proposal 2) (proposal requiring agency to "make every effort"
to promote bargaining unit employees did not directly interfere with
management's right under section 7106(a) because the proposal itself expressly
limited the meaning of the phrase "every effort" to those efforts consistent
with statutes, Executive Orders, or other superior authority).

We note the Union's claim that "[t]he provision does not prohibit the
[Agency] from expanding the area of consideration." Union's Response at 3. The
Union's claim that the provision does not prohibit the Agency from expanding
the area of consideration ignores the fact that, as worded, the provision
governs the decision to promote, not the decision as to whom to consider for
promotion. As the provision limits the Agency in selecting candidates, it is
irrelevant that the provision does not explicitly prohibit the Agency from
expanding the area of consideration.

The Union does not argue that Provision 3 is intended to be an
appropriate arrangement within the meaning of section 7106(b)(3) of the
Statute. SeeBureau of Reclamation. Accordingly, we find that
Provision 3 is nonnegotiable.

V. Provision 4

Article 32, Details and Temporary Promotions, Section 2

Selections of employees for detail assignments will be made on a fair
and impartial basis. The selecting official shall be responsible for informing
the employee of the detail assignment, reasons for the assignment, duties to be
performed, estimated duration, and for establishing controls to ensure that
details are recorded and timely terminated. No detail should be made to avoid
the filling of an otherwise necessary job on a permanent basis. The
detail procedures should be used only for temporary need to the Employer
and will not normally exceed a maximum of three (3) months to that
position.

(Only the underlined portion is in dispute.)

A. Positions of the Parties

1. The Agency

The Agency argues that Provision 4 directly interferes with
management's right to assign employees under section 7106(a)(2)(A) by
"restrict[ing] the duration of a detail, under normal circumstances, to three
months." Agency's Statement of Position at 7. According to the Agency,
"[i]nherent in the right of management to assign employees is the right to
decide when such an assignment should begin and end . . . so that the work
involved will be accomplished." Id. The Agency notes that, under
Authority precedent, the use of the word "normally" does not make the provision
negotiable because "the use of that word 'normally' establishes a standard and
would obligate management to justify any deviation from the established
standard." Id. at 8, citing National Federation of Federal Employees,
Council of Veterans Administration Locals and Veterans Administration, 31
FLRA 360, 429 (1988) (Proposal 22, Section 9), remanded as to other matters
sub nom.Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir.
order Sept. 27, 1988).

2. The Union

The Union argues that the intent of the provision is to "emphasize the
temporary nature of a detail not to restrict the duration of a detail." Union's
Response at 3-4. According to the Union, the provision "does not limit details
to three (3) months, but sets three (3) months as normally the maximum."
Id. at 3. The Union claims that reading the provision in the context of
the other portions of the Article "clarifies its purpose of assuring fairness
and adherence to Merit System Principles[.]" Id. at 4.

B. Analysis and Conclusions

We find that Provision 4 directly interferes with management's right to
assign employees under section 7106(a)(2)(A) of the Statute. We further find
that Provision 4 constitutes an appropriate arrangement within the meaning of
section 7106(b)(3).

Provisions or proposals which limit the length of assignments,
including details, directly interfere with management's right to assign
employees under section 7106(a)(2)(A) of the Statute. International
Association of Machinists and Aerospace Workers Union and Department of the
Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 732 (1988)
(Proposal 10); American Federation of Government Employees, AFL-CIO, Local
1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg,
North Carolina, 28 FLRA 493, 512 (1987) (Provision 5, Sections 2, 3, 4, and
6) (Fort Bragg Dependent Schools).

Provision 4 states that details will not "normally" exceed 3 months.
Rather than preserving management's right to assign employees, the term
"normally" restricts the exercise of that right by establishing a criterion
limiting the range of alternatives from which management can choose when
assigning employees to details. Therefore, the term "normally" constitutes a
substantive limitation on the Agency's right to assign employees because it
establishes a substantive standard governing management's decision to assign
employees to details. SeeNational Federation of Federal Employees,
Local 615 v. FLRA, 801 F.2d 477, 480 (D.C. Cir. 1986), affirmingNational Federation of Federal Employees, Local 615 and National Park
Service, Sequoia and Kings Canyon National Parks, U.S. Department of
Interior, 17 FLRA 318 (1985) (Provision 2); and National Association of
Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans
Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657,
671 (1991) (Provision 4).

Accordingly, we find that Provision 4 directly interferes with the
Agency's right to assign employees under section 7106(a)(2)(A) of the Statute.
SeeFort Bragg Dependent Schools (Provision 5, Sections 2, 3, 4,
and 6) (a provision providing that the employer could detail employees to
higher-graded, lower-graded, or unestablished positions for specified periods
of time was found to directly interfere with management's right to assign
employees).

We note the Union's claim that the provision is intended to "assur[e]
fairness and adherence to Merit System Principles[.]" Union's Response at 4. We
interpret the Union's claim as an argument that the provision constitutes an
appropriate arrangement for employees adversely affected by the exercise of
management's right to assign employees. Therefore, we will consider whether the
provision is negotiable under section 7106(b)(3) of the Statute.

As we noted previously, in determining whether a provision or proposal
is an arrangement for employees adversely affected by the exercise of
management's rights, we look to "the effects or foreseeable effects on
employees which flow from the exercise of those rights, and how those effects
are adverse." Kansas Army National Guard, 21 FLRA at 31.

We find that Provision 4 is intended to be an arrangement for employees
who are adversely affected by management's decision to assign employees. As
noted by the Union, the provision is intended to "assur[e] fairness" and is
intended to be read in context with other portions of Article 32, Section 2
whose purpose is to ensure that "the detail procedure shall not become a device
to afford certain individuals an undue opportunity to gain qualifying
experience and [that] no detail . . . be made to avoid the fil[l]ing of an
otherwise necessary job on a permanent basis[.]" Union's Response at 4. As the
provision is intended to mitigate the adverse effects on employees when details
are used unfairly, we find that it is distinguishable from Fort Bragg
Dependent Schools (Provision 5, Sections 2, 3, 4, and 6), where the
Authority found that a provision was not an arrangement because the length of a
detail was not shown to adversely affect employees.

We turn, then, to the question of whether Provision 4 constitutes an
appropriate arrangement or whether it excessively interferes with management's
right to assign work. As noted by the Union, Provision 4 does not completely
preclude management from assigning employees to a detail for longer than 3
months, but provides that "normally," management may not assign employees to a
detail for longer than 3 months. The Union defines "normally" as "usually" or
"as a rule." Union's Response at 3.

The Union states that the 3-month limit established by the provision is
intended to ensure "fairness" by limiting management's ability to use details
to provide selected employees with the advantage of qualifying experience. The
provision ensures that benefit by "usually" barring details longer than 3
months.

The provision benefits employees in those circumstances where the work
of a detail would extend beyond 3 months by ensuring that, in normal
circumstances, another qualified employee would be assigned to the detail and
would thereby gain the experience of performing that work. Further, the
provision does not preclude the Agency in all situations from extending details
beyond 3 months, but permits the Agency to extend details in unusual
circumstances. We find that the benefit to employees outweighs the burden
placed on management's ability to extend details beyond 3 months. Accordingly,
we conclude that Provision 4 constitutes an appropriate arrangement under
section 7106(b)(3) of the Statute.

VI. Provision 5

Article 33, Discipline/Adverse Actions, Section 8

The preferment of more than one charge for a single instance of
misconduct is prohibited, except when the instance involves two (2) or more
unrelated offenses.

A. Positions of the Parties

1. The Agency

The Agency contends that Provision 5 directly interferes with
management's right to discipline employees under section 7106(a)(2)(A) of the
Statute because the provision "would preclude management from preferring more
than a single charge in a given instance of employee misconduct." Agency's
Statement of Position at 9. The Agency maintains that the provision would
deprive management of the "full scope of its authority to discipline by the
requirement to seek discipline for only a single infraction despite the
presence of related infractions for which discipline could be imposed."
Id. at 10. For example, the Agency contends that the provision "would
prevent an agency from charging an employee both with: (1) on-duty sale of
cocaine; and (2) on-duty use of cocaine, since the [U]nion could plausibly
contend that these are related offenses." Id. at 9.

2. The Union

The Union argues that the "intent of the provision is to prevent an
employee from being charged with several offenses/violations for a single
instance of misconduct." Union's Petition for Review at 3. The Union notes the
Agency's cocaine example, but contends that the example is "ridiculous" because
"sale and on-duty use of cocaine are clearly unrelated offenses." Union's
Response at 4. The Union contends that in a situation where an employee sold
cocaine once, the provision "would prevent the Agency from charging the
employee" with sale of cocaine in violation of: (1) Agency regulation; (2)
state law; and (3) federal law, for that single instance of misconduct.
Id. According to the Union, a "single charge for a single instance of
misconduct is appropriate and maintains management's right to discipline."
Id.

B. Analysis and Conclusions

Provisions or proposals that prevent management from bringing a
disciplinary action directly interfere with management's right to discipline
employees under section 7106(a)(2)(A) of the Statute. American Federation of
Government Employees, Local 987 and U.S. Department of the Air Force, Robins
Air Force Base, Georgia, 37 FLRA 197, 206 (1990), petition for review
filed as to other matters sub nom.United States Department of the Air
Force v. FLRA, No. 90-1530 (D.C. Cir. Nov. 13, 1990); and American
Federation of Government Employees, AFL-CIO, Local 1458 and U.S. Department of
Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA
3, 19-20 (1987) (Provision 12) (U.S. Department of Justice). Further,
provisions or proposals that restrict management's discretion to choose the
specific penalty to impose in disciplinary actions directly interfere with
management's right to discipline employees. American Federation of
Government Employees, Local 738 and U.S. Department of the Army, Fort
Leavenworth, Kansas, 38 FLRA 1203, 1214 (1990) (Proposal 2); and
National Association of Government Employees, Local R4-6 and Department of
the Army, Fort Eustis, Virginia, 29 FLRA 966, 969-70 (1987).

Provision 5 prevents the Agency from bringing more than one charge
against an employee for one instance of misconduct. By allowing the Agency to
bring only one charge against an employee in the described circumstances, the
provision prevents the Agency from taking disciplinary action in situations
where it deems more than one charge is necessary and restricts the Agency's
ability to impose or seek the imposition of a specific penalty. Accordingly, we
find that Provision 5 directly interferes with the Agency's right to take
disciplinary action under section 7106(a)(2)(A) of the Statute. SeeU.S. Department of Justice (a provision prohibiting management from
instituting a disciplinary action that encompassed a charge that had previously
been withdrawn was inconsistent with management's right to discipline
employees).

Provision 5 is distinguishable from an identically worded provision
which we recently found negotiable in American Federation of Government
Employees, AFL-CIO, Local 53 and U.S. Department of the Navy, Navy Material
Transportation Office, Norfolk, Virginia, 42 FLRA No. 68 (1991) (Provision
6) (Navy Material Transportation Office). The union in Navy Material
Transportation Office stated that under the provision, "if an alleged act
constitutes violation of more than one applicable stricture on the employee's
conduct, then the provision permits the employer to cite such violations as
charges in a disciplinary action." Navy Material Transportation Office,
slip op. at 24. Based on the union's statement of intent, the Authority found
that the provision at issue in Navy Material Transportation Office did
not directly interfere with management's right to discipline employees because,
consistent with Southers v. Veterans Administration, 813 F.2d 1223 (Fed.
Cir. 1987), the provision only prevented management from bringing more than one
charge of the same violation against the employee based on the same
conduct.

Unlike Navy Material Transportation Office, the Union in this
case specifically states that Provision 5 is intended to "prevent the Agency
from charging the employee" for a single instance of misconduct with a
violation of: (1) Agency regulation; (2) state law; and (3) Federal law.
Union's Response at 4. The Union does not argue or assert that the provision is
intended, even in part, to prevent management from bringing more than one
charge of the same violation against the employee based on the same conduct.
Therefore, if an employee's alleged act of misconduct constitutes a "violation
of more than one applicable stricture on the employee's conduct[,]" the Agency
would not be permitted to "cite such violations as charges in a disciplinary
action." Navy Material Transportation Office, slip op. at 24. We find
that Provision 5 prohibits the Agency from bringing more than one charge of
any violation based on the same conduct. Therefore, Provision 5
prohibits the Agency from charging an employee for conduct that violated more
than one law, rule, or regulation. We find that the prohibition in Provision 5
is different from the intended effect of the provision in Navy Material
Transportation Office. Unlike the provision in Navy Material
Transportation Office, Provision 5 in this case does not merely reflect
existing legal restrictions, but prevents management from bringing appropriate
disciplinary action against an employee.

Accordingly, we conclude that Provision 5 directly interferes with the
Agency's right to discipline employees. SeeAmerican Federation of
Government Employees, Local 3457 and U.S. Department of the Interior, Minerals
Management Service, Southern Administrative Service Center, New Orleans,
Louisiana, 42 FLRA 567, 577 n.6 (1991) (where the Authority's determination
on a proposal identical to a proposal in another case was different because the
union's statement of intent made it clear that the proposal was intended to be
implemented in a different manner).

We note the Union's argument that the "intent of the provision is to
prevent an employee from being charged with several offenses/violations for a
single instance of misconduct." Union's Petition for Review at 3. Applying the
principles set forth in Kansas Army National Guard, we find that
Provision 5 is an arrangement for employees adversely affected by management's
right to discipline employees because employees are adversely affected when
they are subject to multiple disciplinary charges for a single offense.

We turn, then, to the question of whether Provision 5 constitutes an
appropriate arrangement or whether it excessively interferes with management's
right to discipline employees. In order to determine whether the disputed
language excessively interferes with the management right, we must determine
whether the burden placed on the management right is disproportionate to the
benefits to employees conferred by the proposal. SeeKansas Army
National Guard, 21 FLRA at 33.

Provision 5 benefits employees by preventing management from
instituting multiple disciplinary charges against them for a single instance of
misconduct. However, this benefit is outweighed by a substantial infringement
on management's right. As the burden placed on the management right is
disproportionate to the benefit to employees, we conclude that Provision 5
excessively interferes with management's right to discipline employees and is
not an appropriate arrangement within the meaning of section 7106(b)(3).
SeeNational Federation of Federal Employees and Department of the
Interior, Bureau of Land Management, 29 FLRA 1491, 1520 (1987) (Provision
16, section (d)), petition for review denied in part and enforced in part as
to other matters sub nom.Department of Interior, Bureau of Land
Management v. FLRA, 873 F.2d 1505 (1989).

Accordingly, Provision 5 is nonnegotiable.

VII. Provision 6

Article 34, Grievance Procedure, Section 3.j

The following matters are specifically excluded from consideration
under the Negotiated Grievance Procedure:

j. Termination of Temporary and Intermittent Employees, except for
cause.

A. Positions of the Parties

1. The Agency

The Agency contends that providing temporary nonappropriated fund
employees with access to grievance and arbitration procedures directly
interferes with management's right to layoff and remove employees under section
7106(a)(2)(A) of the Statute. The Agency also contends that the provision is
contrary to regulations that "allow the termination of temporary employees at
any time without providing any justification for the action." Agency's
Statement of Position at 12. Further, the Agency argues that the provision
improperly "provide[s] temporary employees an avenue of review not available to
probationary employees." Id., citing Service Employees' International
Union, Local 556, AFL-CIO and Department of the Navy, Marine Corps Exchange,
Kaneohe Bay, Hawaii, 26 FLRA 801, 803-05 (1987) (Marine Corps
Exchange).

2. The Union

The Union contends that the provision does not interfere with
management's rights but "provides due process for temporary and intermittent
employees that are terminated for cause." Union's Response at 5. Citing
Marine Corps Exchange, 26 FLRA at 806-07, and National Federation of
Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City
District, Kansas City, Missouri, 20 FLRA 788 (1985) (Kansas City
District), the Union argues that the Authority has previously found
provisions incorporating terminations of temporary and intermittent employees
within the scope of the grievance procedure to be negotiable.

B. Analysis and Conclusions

For the following reasons, we find that Provision 6 is negotiable.

The employees in the bargaining unit work for a nonappropriated fund
instrumentality. Unlike employees in the competitive or excepted service, NAF
employees are under another personnel system pursuant to 5 U.S.C. § 2105(c). With exceptions not relevant here, NAF employees are not covered by
laws which apply to employees within the general Federal Service, including
laws dealing with removals and other adverse actions in 5 U.S.C. §§
7501-7513. Army and Air Force Exchange Service and American Federation of
Government Employees, Region Council 236, 33 FLRA 815, 817-18 (1988).
Rather, procedural protections for removals or other adverse actions affecting
NAF employees are established by regulation of the agency employing them.

Provision 6 allows intermittent and temporary employees to contest
terminations for cause through the negotiated grievance procedure. The Agency
makes no claim, and it is not otherwise apparent, that the portion of Provision
6 providing intermittent employees access to the grievance procedure to contest
terminations for cause is inconsistent with law, Government-wide rule or
regulation, or an agency regulation for which a compelling need exists.
Moreover, with respect to intermittent employees, the Union argues that the
provision is consistent with the Authority's decision in Marine Corps
Exchange, where the Authority found that the portion of a provision
allowing intermittent NAF employees to grieve terminations was negotiable. The
parties bear the burden of creating a record upon which the Authority can make
a decision. National Federation of Federal Employees, Local 1167 v.
FLRA, 681 F.2d at 891. A party failing to meet this burden acts at its
peril. Naval Underwater Systems Center. Accordingly, consistent with
Marine Corps Exchange, we find that the portion of Provision 6 allowing
intermittent employees to grieve terminations for cause is negotiable.

With respect to temporary employees, the Agency argues that the
provision directly interferes with management's right to layoff and remove
employees under section 7106(a)(2)(A) of the Statute and is contrary to
regulations that "allow the termination of temporary employees at any time
without providing any justification for the action." Agency's Statement of
Position at 12. In support of its arguments, the Agency cites Marine Corps
Exchange, in which the Authority found that the portion of a proposal
allowing probationary NAF employees to grieve terminations for cause was
nonnegotiable. In that case, the Authority noted that, under the agency's
regulations, probationary employees were subject to summary termination. The
Authority concluded, therefore, that a provision allowing probationary
employees to grieve terminations was contrary to management's right to hire
under section 7106(a)(2)(A) of the Statute.

Unlike Marine Corps Exchange, the Agency in this case has not
provided a copy of or a citation to the regulations dealing with the
termination of its employees. As we noted previously, procedural protections
for removals or other adverse actions affecting NAF employees are established
by regulation of the agency employing them. Therefore, the fact that the
Authority may find that certain NAF employees working for one nonappropriated
fund instrumentality may be summarily terminated does not mean that the
Authority will reach the same result with employees of another nonappropriated
fund instrumentality. Accordingly, the Agency's reliance on Marine Corps
Exchange is misplaced.

Further, as NAF employees are not covered by the statutory provisions
prescribing removals or other adverse actions for employees in the competitive
or excepted service, we will not apply the Authority's previous decisions in
American Federation of Government Employees, AFL-CIO, Council of Marine
Corps Locals, Council 240 and U.S. Department of the Navy, Headquarters, U.S.
Marine Corps, Washington, D.C., 39 FLRA 839 (1991); and Federal
Employees Metal Trades Council and U.S. Department of the Navy, Mare Island
Naval Shipyard, Vallejo, California, 38 FLRA 1410 (1991) (Provision 4),
finding that provisions or proposals allowing temporary employees to contest
adverse actions, including removals, through the negotiated grievance procedure
violated the Civil Service Reform Act of 1978.

We conclude that the Agency has not established that the portion of the
provision allowing temporary employees to grieve terminations for cause
directly interferes with management's right to hire, layoff, and remove
employees under section 7106(a)(2)(A) of the Statute or is otherwise
inconsistent with law, regulation, or an Agency regulation for which a
compelling need exists. Therefore, we find that the portion of Provision 6
applying to temporary employees is negotiable as well. SeeFort Bragg
Dependent Schools, 28 FLRA at 530-31 (Provision 13) (a provision subjecting
the terminations of employees to the negotiated grievance procedure was found
to be negotiable where the agency did not establish that the provision was
inconsistent with applicable agency regulations).

VIII. Order

The Agency must rescind its disapproval of Provisions 4 and 6 and
Section 5 of Provision 2.(3) The Union's
petition for review as to Provisions 1, 3, 5, and Section 11 of Provision 2 is
dismissed.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The Agency withdrew its allegation of nonnegotiability
with respect to Article 9, Overtime, Section 2. Accordingly, that provision is
not before the Authority.

2. Consistent with the way the parties addressed the
matter, the remainder of Article 12, Section 5 is discussed as part of
Provision 2.

3. In finding that Provisions 4 and 6 and Section 5 of
Provision 2 are negotiable, we make no judgment as to their merits.